Bethea v. Walsh
| Decision Date | 19 January 2016 |
| Docket Number | 09-CV-5037 (NGG) |
| Parties | GUS BETHEA, Petitioner, v. JAMES WALSH, Superintendent, Sullivan Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Gus Bethea ("Bethea" or "Petitioner") brings this pro se Petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state conviction on two counts of first-degree robbery. (Pet. for Writ of Habeas Corpus ("Pet.") (Dkt. 1).) Petitioner asserts multiple grounds for relief, based on: (1) ineffective assistance of trial counsel; (2) violation of his constitutional rights by the trial court; (3) violation of his constitutional rights by the prosecutor; (4) violation of his constitutional rights at sentencing; (5) ineffective assistance of appellate counsel; and (6) a claim of actual innocence. For the following reasons, Bethea's Petition is DENIED in its entirety.
On October 31, 2001, complainants Kendrick Bass and Emmanuel Davis were robbed at gunpoint in front of 60 Glenmore Avenue, located within the Howard Housing Development in Kings County, New York. (Br. of Def.-Appellant, People v. Bethea, No. 2003-4626 (N.Y. App. Div. Dec. 1, 2005) ("Def.-Appellant Br.") (Pet. at 84) at 2.)1 The perpetratorapproached Bass with a gun and took his wallet, money, and cellphone. (Suppl. Resp. to Order to Show Cause ( ) The perpetrator also approached Davis with the gun and took his money, cell phone, ring, chain, and coat. (Id.)
Each complainant separately reported the crime to the New York City Police Department ("NYPD") at the 73rd Precinct, and each was interviewed by NYPD Detective Paul Parsekian. (Resp't's Br., Bethea, No. 2003-4626 (N.Y. App. Div. Feb. 27, 2006) ) Detective Parsekian drove Davis and Bass around the neighborhood, but they could not find the perpetrator. (Id. at 5.)
On November 1, 2001, the day following the robberies, Petitioner approached Davis and returned the stolen ring. Petitioner apologized to Davis (id. at 16:1-11), told him that he was "going through problems with his family," and promised to return Davis's other property (id. at 15:17-25). Petitioner never returned any of Davis's other stolen property, however, and Davis testified that he later saw Petitioner wearing the stolen coat. (Id. at 15:17-25, 16:15-20.)
On November 26, 2001, Bass spoke to Detective Parsekian on the telephone and told him that the robber went by the nickname "Pop" and lived at 300 Stone Avenue, which was Petitioner's address at the time.2 (See id. at 42:15-43:1.)
On February 16, 2002, Bass told Detective Parsekian that he had run into Petitioner roughly two weeks prior and that Petitioner had told him, "Sorry for what happened to you." (Id. at 44:11-16.) At trial, Bass denied telling Detective Parsekian that Petitioner had apologized forrobbing him, suggesting instead that Petitioner had only expressed condolences for what had happened. (See id. at 45:16-21.)
Detective Parsekian later located Petitioner and arranged a lineup on February 23, 2002, in which Petitioner was the subject. (See id. at 59:4-8.) Bass viewed the lineup and identified Petitioner as the man who had robbed him.3 (Id. at 45:22-25.)
After the lineup, Petitioner asked to make a telephone call to his aunt. (See id. at 66:9-16.) During the telephone call, Detective Parsekian heard Petitioner tell someone to "reach out to Shatog," and to "go to the building behind his grandmother's house, because it's the person's cousin that is pressing charges against him." (Id. at 67:5-10.) Approximately twenty-five minutes after the phone call, Petitioner told Detective Parsekian, (Id. at 67:17-24.)
On August 5, 2002, Bass wrote a letter, signed by a Notary Public, that recanted his identification of Petitioner as the robber. (See id. at 46:1-7.) Bass gave this letter to Petitioner's family (id. at 46:8-14), but he claimed that he was never contacted by them (id. at 49:25-25). Bass stated in the letter that that he had come to realize that he had seen the real perpetrator in Brownsville several times after the robbery and, through "personal investigation," realized that Petitioner was not the individual who robbed him. (See id. at 46:18-47:1.) Bass never contacted the District Attorney's office or Detective Parsekian about these sightings. (Id. at 47:2-8.)
Around December of 2002, or January of 2003, Davis received a phone call from people whose voices he recognized as friends of Petitioner. (See id. at 20:19-21, 27:15-17.) Davis testified that the individuals on the phone asked him not to come to court. (Id. at 20:21-25.)
Petitioner was charged in New York Supreme Court, Kings County, with two counts each of first-degree robbery, third-degree robbery, fourth-degree grand larceny, and petit larceny. (See Indictment, People v. Bethea, No. 1237/2002 (N.Y. Sup. Ct.) (Resp., Ex. C-1 (Dkt. 4-3)) at 7.)
On March 4, 2002, the trial court appointed John Stella, Esq. to represent Petitioner. (Pre-Hr'g Decision at 2.) On October 15, 2002, the trial court granted Mr. Stella's ex parte motion to be relieved as counsel and, in his place, assigned Phillip Sicks, Esq., who represented Petitioner at the pre-trial hearing and trial.4 (Id.) Subsequently, Petitioner requested an adjournment of at least three weeks so that he could retain private counsel. (Apr. 15, 2003, Trial Tr. (Resp., Ex. C-1 at 62) at 8:8-10.) The court denied Petitioner's request without any further inquiry. (Id. at 8:11.)
Petitioner's jury trial began on April 15, 2003. (Id. at 8:1.) At trial, Bass and Davis, along with Detective Parsekian, testified as witnesses for the prosecution.
On April 22, 2003, the jury convicted Petitioner of two counts of first-degree robbery.5 On May 12, 2003, the court sentenced Petitioner to two concurrent terms of imprisonment of twenty-five years. (See May 12, 2003, Sentencing Tr. ("Sentencing Tr.") (Resp., Ex. C-3 at 60) at 5:14-6:11.)
On June 11, 2003, Petitioner, represented by new counsel, Daniel F. Lynch, Esq., appealed his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department. (Not. of Appeal, Bethea, No. 1237/2002 (N.Y. Sup. Ct. June 11, 2003) (Resp., Ex. C-1) at 4.) In his appeal, Petitioner argued: (1) that the trial court erred in failing to grant him a hearing on the admissibility of evidence of uncharged crimes pursuant to People v. Ventimiglia, 420 N.E.2d 59 (N.Y. 1981) (Def.-Appellant Br. at 13-16); (2) that he was deprived of constitutionally adequate trial counsel insofar as counsel: (i) failed to request a hearing and limiting instructions on the admission of evidence of uncharged crimes, (ii) inadequately cross-examined key prosecution witnesses, (iii) made only a perfunctory closing argument, and (iv) made only perfunctory comments during sentencing (id. at 17-19); and (3) that the sentence imposed was harsh and excessive (id. at 19-24).
On November 8, 2006, the Appellate Division affirmed Petitioner's conviction. People v. Bethea, 824 N.Y.S.2d 128 (App. Div. 2006). With respect to Petitioner's Ventimiglia claim, the court observed that he had failed to preserve it for appellate review. Id. at 129. The court further concluded that "in any event, such testimony was properly introduced as some evidence of the defendant's consciousness of guilt," and that the trial court issued the proper limiting instructions to the jury. Id. In addition, the court found that Petitioner was not denied the right to effective assistance of counsel, and that his sentence was not excessive. Id.
On June 19, 2007, Petitioner was denied leave to appeal to the New York Court of Appeals. People v. Bethea, 872 N.E.2d 880 (N.Y. 2007) (table decision).
On March 28, 2008, Petitioner applied pro se for a writ of error coram nobis from the Appellate Division on the ground that he was denied the effective assistance of appellate counsel. (See Not. of Appl. for Writ of Error Coram Nobis, People v. Bethea, No. 1237/2002 (N.Y. App. Div.) (Resp. Ex. D (Dkt. 4-6)).) Petitioner claimed his appellate counsel was ineffective for raising a mischaracterized and unpreserved Ventimiglia claim. Petitioner also argued that appellate counsel should have raised the following additional claims: (1) the evidence was legally insufficient to establish his guilt beyond a reasonable doubt; (2) the trial court erroneously allowed the prosecution to impeach one of its witnesses with his grand jury testimony and failed to immediately issue corresponding limiting instructions to the jury; (3) the prosecutor engaged in misconduct that deprived Petitioner of a fair trial; (4) Petitioner was denied his right to choice of counsel through the trial court's summary denial of his request for a three-week adjournment to retain private counsel; and (5) the hearing court improperly denied Petitioner's motion to suppress his pre-Miranda statements.
On August 19, 2008, the Appellate Division denied Petitioner's application, concluding that he had failed to establish that he was denied effective assistance of appellate counsel. People...
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